Malaysia is a multi-ethnic, multi-cultural and multi-religious country, on the verge of achieving developed nation status. Malaysian people are a caring people concerned about justice and human rights.

Today, there are about 1.8 million registered (or documented) migrant workers in Malaysia. 15 countries now supply workers in various employment sectors in Malaysia with the largest number coming from Indonesia (1.2 million ) followed by Nepal which provides 170,000 workers. Other sending countries include India, Sri Lanka, Bangladesh, Pakistan, Burma, Thailand, Vietnam, Timor Leste and the Philippines

According to government estimates, there is an equivalent number of unregistered (or undocumented) migrant workers in Malaysia, and today that means at least 1.8 million undocumented workers. The actual figure of unregistered (or undocumented) migrant workers in Malaysia could be about 5 million. This estimate is supported by the fact that official entry-exit records in 2004 showed that there were about 5,852,997 persons or 38% of the total arrivals overstaying. In fact, recently our Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad was reported saying that 800 to 900 foreign workers arrive at the KL International Airport daily(Star,14/10/06), and that did not include entry through land and sea. Undocumented migrants can enter Malaysia so much more easily by sea and land, avoiding immigration and customs authorities and that is, I believe, the manner of entry employed by the majority of undocumented migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the Malaysian Department of Statistics was 10,498,600 and that means that number of migrant workers (both documented and undocumented) is about 30% to 50% of the total Malaysian labour force. This fact of the growing number of migrant workers in Malaysia also tally with the figures of persons in the Malaysian prisons, where it was disclosed that 25% of the prison community were foreigners in 2003, and in 2004 it was stated that the number of foreigners exceed the number of local Malaysian in prisons. A recent AFP report in October 2006 reiterated that Malaysia’s 10.5 million strong labour force is made up of 2.6 million foreign workers.

We cannot deny the fact that in the past 3 decades migrant workers, both documented and undocumented, have contributed significantly to the economy of this nation.

MIGRANTS AND THEIR RIGHTS UNDER MALAYSIAN LAW

In Malaysia, we do not discriminate. We guarantee all persons equality and equal protection of the law. Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented, and also refugees. Under our Trade Union Act, migrant workers have the right to unionize and also be members of existing unions – and this is very important to enable all workers, including Malaysian workers, the ability to ensure greater protection and advancement of worker rights,

Migrant workers in law have access to the Labour Court and the Industrial Courts just like any local worker.

The problem is that when Migrants come to the country, their very presence and their ability to work legally is linked to a work permit, which stipulates a named employer. And when a migrant worker, who has been victimized, wants to seek justice through the Labour Court and/or the Industrial Relations Department, the usual thing that happens is that the errant employer immediately terminates the work permit leaving the migrant worker in a dilemma having no right to continue to be in the country, without work and capacity to earn a living. This makes a mockery of the protection afforded in law, and we need to do something to remedy this state of affairs. Maybe the migrant must be the person who is allowed to apply for a work permit (or even apply for variation of a permit) – not the employer.

NEED FOR NEW PROCEDURES TO ENSURE REAL JUSTICE FOR MIGRANT WORKERS

To overcome this problem, we should allow workers who do resort to the Labour Court and/or the Industrial Court in pursuit of their rights as workers against unscrupulous employers, to stay on in Malaysia until the courts can mete out justice. In some countries, like Hong Kong, shelters are provided by the government for workers during this period as they claim this ‘constitutionally guaranteed equal protection’ and justice under the law.

Maybe we should also be thinking of special tribunals for migrant workers – which would provide a speedy procedure so that cases of non-payment or under-payment of wages and wrongful dismissal, could be dealt with speedily no later than 3 months from the date of the complaint.

Better still, workers whose rights have been violated, and who has filed a complaint should be allowed to work with another employer.

It is no use having good labour laws & courts with the object to ensure that no workers will be deprived of their rights AND then have a situation like what we have today that makes it almost impossible for the migrant worker to access and/or get justice.

Likewise, when a migrant worker makes a police report against his/her employer. The government encouraged migrant workers, like domestic workers, to complain about abuses by employers and/or other members of their household. When they do complain, they lose their job and it is sad that the government takes the position that the migrant worker that complains will not get his /her permit varied so that he/she can work with another employer until that criminal case is disposed off.

Now, when a migrant worker makes a complaint about abuse, his employer when charged ONLY has to just plead not guilty and most likely he/she will get away with it because the complainant migrant worker by reason of not being able to work is back in his home country not able to appear in court to testify against his ex-employer. We cannot allow this mockery of the criminal justice system to continue.

A WORKER IS A WORKER AND HE/HER IS ENTITLED TO HIS/HER WAGES

A worker who works for an employer is entitled to his just wage, and it should not matter whether he is documented or undocumented. It will be a gross injustice for an employer who benefits from the sweat and labour of a worker and then be allowed to escape his obligation of paying wages.

True, the undocumented worker has broken the law concerning immigration and for that he must be penalized. However, he should not be deprived of the fruits of his labour – and these unscrupulous employer should never be allowed to escape his obligations to pay wages.

Let us not forget that it is because of these bad employers who employ undocumented workers that many come over to Malaysia to work without the necessary documentation.

MIGRANTS ARE HUMAN BEINGS AND SHOULD NOT BE TREATED AS STRAY DOGS

We must also never forget that the migrant worker is a human being just like you and I. Migrants are father, mother, brother, sister, husband, wife, son, daughter and uncle to other human persons.

We must stop this “Catch a Migrant and Get Paid for it” policy which we have since 2005. In 2005, members of the People’s Volunteer Corps (Rela), an organisation of uniformed part-timers who have some policing powers, were offered and did receive cash rewards for each migrant arrested as an economic incentive and this was most disturbing and embarassing. It is sad that on the planned crackdown next year, Home Affairs Minister Datuk Seri Radzi Sheikh Ahmad was reported to have said Rela members would be again roped in for the operation(Star, 14/10/2006). Since Rela was given authority last year to nab illegal immigrants, its members had arrested about 19,000 foreigners.

We have the police, immigration officers and other enforcement officers that are professionally trained and has the duty to enforce the law – and as such the using of part-time RELA for the arrest of a certain class of persons is certainly just not right and goes against the guaranteed equality and equal protection of the law. Further, there has been just too many complaints about the use of excessive force, causing serious injuries to foreigners from Indonesia, Bangladesh and Burma in recent months.

At least three incidents since July were recently highlighted in the media when suspected illegal immigrants from Indonesia, Bangladesh and Burma were beaten. Most were later discovered to have valid immigration documents. It was also said that these RELA volunteers also often force their way into homes without warrants, destroy private property and wrongfully detain suspects. These kind of law-breaking must end. Let us not forget that we are dealing with human beings here, not animals

DISCRIMINATION

If a worker is paid more because of his working experience, academic or technical qualifications and/or skills then it is perfectly acceptable and just. But if a worker is discriminated on the basis of his/her nationality, ethnicity and/or religious belief, this is not at all acceptable. Today, migrant workers are being discriminated based on their nationality despite the fact that they do the same work. Indonesians are the lowest paid whilst the Filipinos are the highest paid. This must end,

Another aspect of discrimination is when undocumented workers are arrested, Some are deported immediately whilst others are charged, tried,convicted and sentenced to imprisonment and sometimes whipping. Either all are charged in court or all are immediately deported. This is yet another discrimination that has to be stopped.

Foreign Domestic Workers and Protection of Migrants

Our employment laws generally do not provide for protection of domestic workers’ rights as it does for other workers, and given the fact that there are today more than 300,000 domestic workers, we must enact a law for the protection of domestic workers. Today Jordan has such a law. Hong Kong also has such laws, and in Taiwan, there is now a Bill before their parliament.

Given the unique differences when it comes to migrant workers, maybe we too, like Singapore and some other migrant receiving countries, should also enact a new law to cover migrant workers or just maybe include a section in our existing employment laws. In these laws, we must also deal with the question of recruiting agents both in the sending and receiving countries.

Recently, in October 2006, a media report informed us about Bangladeshi labour agents who are illegally bringing workers from the Indian subcontinent into the country. In the said report Enforcement Director of the Immigration Department, Ishak Mohamed said that

“…every worker brought into the country was forced to pay upto RM18,000 to these illegal agents, who go to the slums and villages and lure these poor people by promising them jobs in air-conditioned buildings, The poor villagers end up paying them a fortune, mortgage their property and everything they own to work here and then they end up slogging in construction sites to pay off their debts back home…”.

This happens in almost all countries. I ask whether it is right for us in Malaysia to further penalize these “cheated” workers.

When it comes to wages, many migrant workers do not receive any money for months as their wages are all deducted to pay off their debts to agents, etc – and this is not at all right. A limit must be set as to amount of their monthly wages that can be deducted, and this should not be more than 30% of their wages. A worker who works should receive some payment every month to use it as he/she pleases including sending back of some monies to sustain their spouse, children and families back home.

We need to have an education campaign, which should be initiated by the government to ensure that migrant workers are made aware of their rights in law, and also about where to go and what to do to complain about rights violations and to get justice. We need special offices, with persons who can do translations, all over the country which is easily accessible to migrant workers,

We will soon also be having an ASEAN Charter, and we must ensure that there are provisions therein that will deal with migrant and migrant worker rights.

Malaysians are a caring people – and we must remember that all migrants/refugees are human beings, and as human beings they have human rights and worker rights and we must do all that is necessary to ensure that these rights are not only acknowledged but also respected. We have been paying too much attention to violation of our country’s immigration laws and way too little to worker rights and human rights. It is time we remedy our failings.

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